Citation Nr: A25035651 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240417-433556 DATE: April 17, 2025 REMANDED 1. Entitlement to a compensable disability rating for the service-connected left hip limitation of extension is remanded. 2. Entitlement to a compensable disability rating for the service-connected left hip limitation of rotation is remanded. 3. Entitlement to an increased disability rating in excess of 10 percent for the service-connected left hip trochanteric pain syndrome is remanded. 4. Entitlement to an increased disability rating in excess of 10 percent for the service-connected right knee strain with tendinosis with tendinosis (hereinafter right knee disability) is remanded. 5. Entitlement to an increased disability rating in excess of 20 percent for the service-connected right lateral collateral ligament sprain (hereinafter right ankle disability) is remanded. 6. Entitlement to an initial disability rating in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD) with insomnia disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1996 to March 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2023 (PTSD with insomnia) and February 2024 rating decisions (left hip, right knee, and right ankle disabilities) by the Department of Veterans Affairs (VA) Regional Office (RO). The decisions were issued on July 10, 2023, and March 1, 2024, respectively. In response to the July 2023 and February 2024 rating decisions, in April 2024, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) where he selected the Direct Review docket. Under that docket, the Board considers the claims based on the evidence of record at the time of the issuance of the rating decision on appeal. 38 C.F.R. § 20.301. Thus, the Board's review is limited to the evidence of record at the time of the July 10, 2023 issuance of the July 2023 rating decision (PTSD with insomnia) and at the time of the March 1, 2024 issuance of the February 2024 rating decision (left hip, right knee, and right ankle disabilities). However, because the Board is remanding the claims, any evidence the Board could not consider will be considered by the agency of original jurisdiction (AOJ) in the adjudication of the claims. 38 C.F.R. § 3.103(c)(2)(ii). [As a preliminary matter, the Board notes that pursuant to the Veteran's April 2024 VA Form 10182, he also included the issues of entitlement to increased initial disability ratings for his service-connected tinnitus, left hip limitation of extension, and left hip limitation of rotation adjudicated in a January 2023 rating decision. In this regard, pursuant to the January 2023 rating decision, the AOJ granted service connection for tinnitus and assigned an initial 10 percent disability rating, effective from October 6, 2022. The AOJ also granted service connection for left hip limitation of extension and left hip limitation of rotation and assigned initial noncompensable disability ratings for each, effective from February 2, 2022. The January 2023 rating decision was issued on February 2, 2023. However, the Board notes that the April 2024 VA Form 10182 is untimely as to the January 2023 rating decision as it was submitted more than one year after the February 2, 2023 issuance of the January 2023 rating decision with respect to these issues. Consequently, the issues of entitlement to increased initial disability ratings for the Veteran's service-connected tinnitus, left hip limitation of extension, and left hip limitation of rotation are not before the Board and will not be further discussed.] 1. Entitlement to a compensable disability rating for the service-connected left hip limitation of extension is remanded. 2. Entitlement to a compensable disability rating for the service-connected left hip limitation of rotation is remanded. 3. Entitlement to an increased disability rating in excess of 10 percent for the service-connected left hip trochanteric pain syndrome is remanded. The Veteran underwent VA hip examination in December 2023 and at that time, he reported current symptoms of tightness in his hip if he walks for extended distances. He also reported that the impact of his left hip prevents him from walking or standing for a long period of time. He reported severe flare-ups of the left hip that occur three times per week which last one hour and are precipitated by walking and/or standing for a long period of time. He stated that flare-ups are alleviated by pain medication and stretching. The Veteran also reported functional loss/impairment of the left hip, described as decreased range of motion. The examiner determined that range of motion testing could not be performed. The examiner explained that range of motion testing would cause too much pain and thus, a baseline could not be established. The examiner also reported that the Veteran was unable to perform repetitive-use testing with at least three repetitions because the Veteran reported he was having a flare-up at that time so range of motion could not be assessed. It was also noted that pain significantly limited functional ability with repeated use over time and during flare-ups. There was no muscle atrophy, ankylosis, or malunion or non-union of the femur, flail hip joint or leg length discrepancy. As to functional impact, the Veteran reported being unable to squat, stand, stoop, or kneel without having pain. Upon review, the Board finds the December 2023 VA hip examination to be inadequate. In this regard, it is unclear why range of motion testing was unable to be conducted in any plane of motion. The Board acknowledges that the VA examiner stated that range of motion testing would cause too much pain, but it is unclear whether the Veteran refused to provide any range of measurements in all planes of motion due to pain, particularly when there was no finding of ankylosis of the left hip. Accordingly, the failure to obtain an adequate VA examination constitutes a pre-decisional duty to assist error and remand is required to obtain an adequate VA hip examination. See 38 C.F.R. § 20.802(a). 4. Entitlement to an increased disability rating in excess of 10 percent for the service-connected right knee strain with tendinosis (hereinafter right knee disability) is remanded. The Veteran underwent VA knee examination in December 2023 and at that time, he reported current symptoms of his right knee giving out while walking. He also reported that the impact of his right knee makes walking and laying down difficult. He reported severe flare-ups of the right knee that occur three to four times per week which last two hours and are precipitated by getting in/out of his vehicle and an extended time standing. He stated that flare-ups are alleviated by getting off his feet and medication. The Veteran also reported functional loss/impairment of the right knee, described as decreased range of motion. The examiner determined that range of motion testing could not be performed. The examiner explained that range of motion testing would cause too much pain and thus, a baseline could not be established. The examiner also reported that the Veteran was unable to perform repetitive-use testing with at least three repetitions for the same reason. It was also noted that pain significantly limited functional ability with repeated use over time and during flare-ups and the examination was being conducted during a flare-up. There was no muscle atrophy or ankylosis. As to functional impact, the Veteran reported being unable to walk, stand, or squat without pain. Upon review, the Board finds the December 2023 VA knee examination to be inadequate. In this regard, it is unclear why range of motion testing was unable to be conducted in any plane of motion. The Board acknowledges that the VA examiner stated that range of motion testing would cause too much pain, but it is unclear whether the Veteran refused to provide any range of measurements in all planes of motion due to pain, particularly when there was no finding of ankylosis of the right knee. Accordingly, the failure to obtain an adequate VA examination constitutes a pre-decisional duty to assist error and remand is required to obtain an adequate VA knee examination. See 38 C.F.R. § 20.802(a). 5. Entitlement to an increased disability rating in excess of 20 percent for the service-connected right lateral collateral ligament sprain (hereinafter right ankle disability) is remanded. The Veteran underwent VA ankle examination in December 2023 and at that time, he reported current symptoms of right ankle achiness and weakness. He also reported that the impact of his right ankle makes walking and standing difficult. He reported severe flare-ups of the right ankle that occur often and last three to four days per week which are precipitated by standing and walking. He stated that flare-ups are alleviated by medication and rest. The Veteran also reported functional loss/impairment of the right ankle, described as decreased range of motion. The examiner determined that range of motion testing could not be performed. The examiner explained that range of motion testing would cause too much pain and thus, a baseline could not be established. The examiner also reported that the Veteran was unable to perform repetitive-use testing with at least three repetitions for the same reason. It was also noted that pain, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over time. The examiner also reported that pain, fatigability, weakness, and lack of endurance significantly limited functional ability during flare-ups and the examination was being conducted during a flare-up. There was no muscle atrophy or ankylosis. As to functional impact, the Veteran reported being unable to squat, stand, stoop, or kneel without pain. Upon review, the Board finds the December 2023 VA ankle examination to be inadequate. In this regard, it is unclear why range of motion testing was unable to be conducted in any plane of motion. The Board acknowledges that the VA examiner stated that range of motion testing would cause too much pain, but it is unclear whether the Veteran refused to provide any range of measurements in all planes of motion due to pain, particularly when there was no finding of ankylosis of the right ankle. Accordingly, the failure to obtain an adequate VA examination constitutes a pre-decisional duty to assist error and remand is required to obtain an adequate VA ankle examination. See 38 C.F.R. § 20.802(a). 6. Entitlement to an initial disability rating in excess of 70 percent for the service-connected PTSD with insomnia disorder is remanded. As a final matter, the Board notes that the Veteran is in receipt of Social Security Administration (SSA) disability benefits pursuant to a June 2012 inquiry. However, to date, the AOJ has not requested SSA records. As the record clearly showed that SSA records were outstanding, and as these records may be relevant to the claims, the failure to attempt to obtain the SSA records constitutes a pre-decisional duty to assist error. Accordingly, a remand to obtain SSA records is necessary. The matters are REMANDED for the following actions: 1. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the SSA decision and medical records considered in deciding his claim(s). If medical records are not available, any other records in SSA's possession (including the SSA application and determination) should be obtained. All efforts to obtain these records must be continued until (a) they are received, (b) it is determined that they do not exist, or (c) it is determined that further efforts to obtain them would be futile. Any negative responses must be associated with the claims file. 2. Schedule the Veteran for a VA hip examination with an appropriate clinician to address the severity and manifestations of his service-connected left hip trochanteric pain syndrome, limitation of extension and limitation of rotation. The entire claims file should be reviewed by the examiner. All necessary tests should be performed, and all clinical findings should be reported in detail, including ranges of motion of the left hip and the degree at which pain begins to comply with DeLuca v. Brown, 8 Vet. App. 202 (1995). All symptomatology associated with the left hip should also be reported. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's left hip. (b.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range of motion testing for left hip pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. (c.) In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)), the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and following repeated use over time of the left hip. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups in terms of the degree of additional range of motion lost based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner does not have the required knowledge or training. 3. Schedule the Veteran for a VA knee examination with an appropriate clinician regarding the severity and manifestations of his service-connected right knee disability. The entire claims file should be reviewed by the examiner. All necessary tests should be performed, and all clinical findings should be reported in detail, including ranges of motion of the right knee and the degree at which pain begins to comply with DeLuca v. Brown, 8 Vet. App. 202 (1995). All symptomatology associated with the right knee should also be reported. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's right knee under the rating criteria in effect prior to February 7, 2021, and the rating criteria in effect thereafter, to include the severity of any instability. (b.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range of motion testing for right knee pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. (c.) In regard to flare-ups, (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)), the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and following repeated use over time of the right knee. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups in terms of the degree of additional range of motion lost based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner does not have the required knowledge or training. 4. Clearly elicit from the Veteran the extent of any reported right knee instability and the functional impairment associated with said instability. 5. Clearly identify any and all assistive devices used by the Veteran throughout the appeal and ascertain from the Veteran whether any such devices were prescribed by a treating clinician. 6. Comment upon whether the Veteran has suffered from the below, or symptomatology/disability equivalent to the below: Recurrent subluxation or instability: (*) Unrepaired or failed repair of complete ligament tear causing persistent instability (*) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane, crutches, walker) for ambulation. (*) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane, crutches, walker) or bracing for ambulation (*) Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane, crutches, walker) or bracing for ambulation Patellar instability: (*) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker (*) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker (*) A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker (*) Note, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. (*) Note, A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 7. Schedule the Veteran for a VA ankle examination with an appropriate clinician to address the severity and manifestations of his service-connected right lateral collateral ligament sprain. The entire claims file should be reviewed by the examiner. All necessary tests should be performed, and all clinical findings should be reported in detail, including ranges of motion of the right ankle and the degree at which pain begins to comply with DeLuca v. Brown, 8 Vet. App. 202 (1995). All symptomatology associated with the right ankle should also be reported. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's right ankle. (b.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range of motion testing for right ankle pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. (c.) In regard to flare-ups, (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)), the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and following repeated use over time of the right ankle. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups in terms of the degree of additional range of motion lost based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner does not have the required knowledge or training. S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Medina, Sara The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.